This
action was brought by professional wrestlers Evan Singleton
and Vito LoGrasso, who allege that Defendant WWE fraudulently
failed to inform them of a link between repeated concussive
or subconcussive blows to the head and permanent degenerative
neurological conditions. Now before the Court is Defendant
World Wrestling Entertainment's (“WWE”)
motion for summary judgment on Singleton's and
LoGrasso's claims for fraud by omission-the only claims
that survived the Defendant's Motion to Dismiss [Dkt. No.
43]. For the reasons that follow, Defendant's motion is
GRANTED.

II.
Background

A.
Defendants' Knowledge of a Link Between Head Trauma
and Permanent Degenerative Neurological Conditions

A key
issue in this case is when WWE first learned of a potential
link between concussive and subconcussive blows suffered by
professional wrestlers and permanent degenerative
neurological disorders such as chronic traumatic
encephalopathy (“CTE”). Plaintiffs' Rule
56(a)(2) statement is rife with mischaracterizations of the
evidence as it pertains to this issue. After careful
consideration of the evidence in the light most favorable to
the Plaintiffs, the Court has determined that the evidence
does not support a finding that WWE knew of a risk that
repeated head injuries incurred while performing as a
professional wrestler could cause permanent degenerative
neurological conditions prior to September 5, 2007. The
reasons for this finding are discussed in the paragraphs that
follow.

Plaintiffs
argue that WWE knew of the risks of repeated head injuries as
early as the 1980s. In support, Plaintiffs cite to the
deposition of Dr. Joseph Maroon, a neurosurgeon who developed
a concussion assessment for athletes, in which he testified
that doctors developed a concussion management protocol as
early as the 1980s, and that they were aware of the risks of
post-concussion syndrome “long before 2008.”
[Maroon Dep. at 21-22]. Plaintiffs also cite the testimony of
Mark Lovell, a neuropsychologist who worked with Dr. Maroon
on concussion testing amateur and professional football
players beginning in the 1980s, professional hockey players
beginning in 1997, professional soccer players beginning in
2005, and professional race car drivers in the early 2000s.
[Lovell Dep. at 24-35]. Dr. Lovell testified that putting an
athlete who suffered a concussion back into a game too soon
could cause “long-term issues” like memory loss,
headaches, dizziness, balance issues, changes in mood and
affect, and potentially suicidal ideation. [Lovell Dep. at
39-51]. Neither Dr. Maroon nor Dr. Lovell were retained by
WWE prior to 2008. Therefore, even if Dr. Maroon's and
Dr. Lovell's statements about concussion science in the
1980s and 1990s could be understood to imply that the risk of
permanent degenerative neurological conditions was known to
them or to other members of the medical community at that
time, that knowledge cannot be imputed to WWE until 2008 at
the earliest

In
addition to the testimony of the doctors WWE retained to
conduct concussion testing in 2008, Plaintiffs cite to two
pre-2007 articles relating to concussions. The first is a
2005 Mayo Clinic article which describes “second impact
syndrome, ” which “occurs when a person has a
recurrent head trauma while still recovering from a
concussion . . . [and] can lead to devastating swelling of
the brain, which could [be ]fatal.” [Pl. Exh. 23 at 2].
The article also states that “[s]ome people experience
postconcussion syndrome, a condition in which the symptoms of
concussion”-such as “memory and concentration
problems, headaches, dizziness, confusion or
irritiability”-persist for weeks or months after the
initial head trauma.” [Pl. Exh. 23 at 3]. According to
the Mayo Clinic article, neither second impact syndrome nor
postconcussion syndrome are permanent neurogenerative
diseases. Rather, the article describes acute swelling of the
brain, and postconcussion symptoms that last months rather
than permanently.

The
second article was written by Dr. Bennett Omalu in 2005, and
detailed the first known case of CTE in a professional
football player. In his conclusions, Dr. Omalu stated,
“

This case highlights potential long-term
neurodegenerative outcomes in retired professional National
Football League players subjected to repeated mild traumatic
brain injury. The prevalence and pathoetiological mechanisms
of these possible adverse long-term outcomes and
their relation to duration of years of playing football
have not been sufficiently studied. We recommend
comprehensive clinical and forensic approaches to understand
and further elucidate this emergent professional sport
hazard.”

[Pl. Exh. 21 at SINGLETON_0000086] (emphasis added). The
article also stated, “This case study by itself cannot
confirm a causal link between professional football and CTE.
However, it indicates the need for comprehensive cognitive
and autopsy-based research on long-term postneurotraumatic
sequelae of professional American football.”
Id. at SINGLETON0000090. Plaintiff offers as
evidence that WWE knew about this article news coverage
relating to its equivocal and inconclusive article.
[See Pl. Exh. 22, 48]. However, Plaintiff has
offered no evidence that WWE was aware of any of this news
coverage or of Dr. Omalu's 2005 article. Plaintiff
further offers no evidence to suggest that at the time Dr.
Omalu's article was published, any research existed that
would suggest that Dr. Omalu's findings regarding one
football player might apply to professional wrestlers, or
that the frequency and severity of head trauma suffered by
football players is similar to that suffered by professional
wrestlers.

Plaintiffs
also argue that WWE learned of a link between concussions and
permanent neurodegenerative disease from Chris Nowinski, a
former wrestler who retired from wrestling in 2003 following
a diagnosis of post-concussion syndrome. Plaintiffs claim
that Nowinski remained employed by WWE following his
retirement from wrestling, and that during that time, he
began researching the connection between repeated concussions
and permanent degenerative neurological conditions. [Dkt. 346
¶ 163]. Based on this research, Nowinski published a
book in September 2006, titled “Head Games:
Football's Concussion Crisis.” [Pl. Exh. 24].

Plaintiff's
exhibits regarding Nowinski's work with WWE between 2003
and 2006 are consistent with the affidavit that Nowinski
filed with the Court in connection with a discovery dispute
in this case. He stated, “After I retired from
wrestling in 2003, I occasionally participated in WWE
programs as an independent contractor through independent
contractor agreements. As my LinkedIn profile indicates, I
primarily participated in programs designed to increase youth
voter turnout in political elections.” [Dkt. No. 182-2
¶ 2]. He further stated, “I did not work at WWE
corporate headquarters as part of my participation in these
programs. I did not have ‘regular interactions with WWE
executives, ' as Plaintiffs assert, as part of my
participation in these programs.” Id. ¶
3. Nowinski further described his research as
“independent” and stated that he lived in Boston,
MA while he was researching his book. Id. ¶ 4.

This
Court has previously addressed Nowinski's involvement
with WWE between 2003 and 2006, holding that “Plaintiff
. . . has offered no facts to suggest that Nowinski's
work with ‘Smackdown Your Vote' during the time
period in which he researched and authored the book provides
him with any knowledge relevant to” WWE's specific
knowledge of or an appreciable risk of a link between
wrestling activity and permanent degenerative neurological
conditions. [Dkt. Nos. 160, 183]. Since the Court issued that
ruling, Plaintiffs have not offered any new evidence showing
that WWE was aware of Nowinski's research, that anyone at
WWE read Nowinski's book, or that anything in
Nowinski's book would suggest a link between professional
wrestling and permanent degenerative neurological conditions.
Indeed, while Nowinski did wrestle professionally, he also
played football for many years, and if the title of the book
provides an accurate assessment of its content, the book
focuses on a “concussion crisis” in football, not
wrestling.[1]

In June
2007, the professional wrestler Chris Benoit killed his wife
and child before committing suicide, prompting Nowinski to
publicly speculate that “untreated concussions might
have caused [Benoit] to snap.” [Pl. Exh. 36]. During a
September 5, 2007 press conference, it was revealed that the
wrestler Benoit had been diagnosed with CTE. [V. McMahon Dep.
at 22; S. McMahon Dep. at 51; Pl. Exh. 20]. In the immediate
aftermath of this revelation, Vince and Stephanie McMahon
made several statements to the media in which they questioned
the credibility of the study. In particular, Vince McMahon
stated that “I would, as a layman certainly wonder
whether or not that report has any credibility” and
Stephanie McMahon stated that “these studies have not
been proven.” [Pl. Exh. 31]. Vince McMahon mentioned
his skepticism that Benoit could truly have had the brain of
an 85-year old with dementia to news outlets, and in a letter
to Benoit's estate's attorney as late as December
2009. [Pl. Exhs. 16, 31, 33]. While Benoit's diagnosis
was revealed in September 2007, a peer review article
regarding Benoit's condition was not published until
September 2010. [Def. Exh. 31].

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